Case Information

The caption has been amended to reflect that the sole proper defendant is the State of New York.

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

None

Motion number(s):

M-62562

Cross-motion
number(s):

Judge:

Alan C. Marin

Claimant's
attorney:

Edward Weiss, Esq.

Defendant's
attorney:

Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, AAG

Third-party defendant's
attorney:

Signature date:

January 10, 2001

City:

New York

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

This is the motion of Desmond L. Pierre for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"). The proposed
claim arises from an accident in which a state-owned vehicle collided with
Pierre's vehicle in Brooklyn on June 28, 2000. In determining whether to grant
this motion, the six factors enumerated in §10.6 must be considered. The
factors are not necessarily exhaustive, nor is the presence or absence of anyparticular one controlling[1]: whether (1)
the defendant had notice of the essential facts constituting the claim; (2) the
defendant had an opportunity to investigate the circumstances underlying the
claim; (3) the defendant was substantially prejudiced; (4) the claimant has
any other available remedy; (5) the delay was excusable and (6) the claim
appears to be meritorious.

The first three factors -- comprehending notice, opportunity to investigate and
prejudice -- are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
In this case, a police report was prepared on the date of the accident. On
August 16, 2000, less than two months after the accident, claimant's attorney
sent a letter to the "New York State Department of Services - Bureau of
Insurance" advising of the accident. See Exhibit A and the following
undesignated Exhibit to the undated affirmation of Edward R. Weiss. In addition,
claimant's motion was made less than four months after the accident. On
balance, claimant satisfies these three factors of the Act.

Although the parties do not address the alternate remedy factor, it appears
that claimant would also have a claim against the driver of the other vehicle.
As to excuse, claimant cites "law office failure." This is not a sufficient
excuse for the purposes of the Act. See, e.g., Nyberg v State of New
York, 154 Misc 2d 199, 585 NYS2d 147 (Ct Cl 1992).

Finally, while merit is one of six factors, "it would be futile to permit the
filing of a legally deficient claim." Prusack v State of New York, 117
AD2d 729, 730, 498 NYS2d 455, 456 (2d Dept 1986). Under the No-Fault Law, a
threshold showing of serious injury under §5102(d) of the Insurance Law
must be made. See Licari v Elliott, 57 NY2d 230, 455 NYS2d 570 (1982).
In this case, the police report indicates that no one was injured in the
accident. Moreover, neither claimant, his attorney, nor any physician has
submitted an affidavit describing his injuries. See Pagano v Kingsburg,
182 AD2d 268, 587 NYS2d 692 (2d Dept 1992). In fact, the only description of
his alleged injuries is in the proposed claim, and it is vague and incomplete.
The first sentence of paragraph four of such proposed claim provides that Pierre
"sustained severe permanent personal injuries, the full extent of which is not
presently known, including but not limited to, upon information and belief,
injuries to the [sic]." We are not given the object of "injuries to the."

Clearly, then, claimant has failed to make a threshold showing of serious
injury under the Insurance Law. Matter of Santana v NYS Thruway
Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) sets out a
standard to ascertain whether a claim appears meritorious: (i) the claim "must
not be patently groundless, frivolous or legally defective" and (ii) upon
consideration of the entire record, including the proposed claim and any
exhibits or affidavits, "there is reasonable cause to believe that a valid cause
of action exists." In view of the foregoing, I cannot find that Desmond L.
Pierre has satisfied the merit factor of the Act.

Accordingly, having reviewed the parties'
submissions[2], IT IS ORDERED that motion no.
M-62562 is denied.

[2]The following were reviewed: claimant's notice
of motion with affirmation in support, Exhibit A, undesignated Exhibit and the
proposed claim; and defendant's affirmation in opposition with Exhibit A.